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The information available in this chapter covers process and procedure under the new rules, the new timelines and deadlines and the chambers application process, including applications for interim orders and to vary final orders, summary trials and petition proceedings. This chapter also features a collection of practical resources on the new rules, including a number of my technical papers and links to information from the Attorney General's office.
I. Process and Procedure Process is really what the Rules of Court are all about. They're a kind of cookbook, if you like, with complete recipes for every step of the litigation process, from commencing a law suit to proving that suit at trial, to appealing an adverse result. Unfortunately, this cookbook isn't optional. If you want to conduct a law suit in the Supreme Court of British Columbia, these are the recipes you must follow and there are serious consequences if you don't: your suit might be thrown out; you might have to pay the other side's costs; you might be found in contempt of court. On the other hand, the cookbook is also very thorough. If you have a question about any aspect of the court's process and procedure, the cookbook will have your answer more often than not. Our Rules of Court were imported from the English courts long before Confederation in 1867, and they've been subject to an ongoing process of editing, revising and clarifying ever since. It is fairly rare to run into a problem that isn't addressed somewhere in the Rules. A. General Provisions RULE 1-1(1) The parties to family law court actions are:
RULE 20-3(2), 20-3(4) Parties under a legal disability must act through a litigation guardian (formerly known as a guardian ad litem). Litigation guardians must act by lawyer. RULE 20-2(1) Children age 16 or older may act without a litigation guardian. 1. Indigent Status RULE 20-5(1), 20-5(2) The court may waive fees for all or part of an action on finding a party is indigent, unless the court believes the action or defense to be unreasonable, frivolous or an abuse of process. RULE 20-5(4) Indigent status may be revoked or varied on the motion of a party or the court. 2. Court Forms All court forms in the new rules begin with the letter F, as in the Financial Statement which is in Form F8 or the Notice of Application in Form F31. Although I may forget about the F from time to time in this discussion, you should assume it's supposed to be there whenever this website mentions a court form for the Supreme Court. RULE 1-1(1) The documents which commence most actions are:
RULE 8-1(1) Pleadings may be amended once, without leave, before service of the Notice of Trial; otherwise pleadings may only be amended with leave or with written consent. Note that amended pleadings must be served on each party within 7 days of filing, see Rule 8-1(4). RULE 1-1(1) In certain, relatively uncommon circumstances, an action can be started with a Petition. Actions like this are called "petition proceedings," and the documents which commence a petition proceeding are:
RULE 11-2(1) The court may order all or part of a pleading to be struck or amended at any stage of an action if the pleading:
RULE 21-1(4) All court forms must have a 5cm square blank space at the upper left corner of the first page. 3. Address for Service RULE 6-1(1) Every party must maintain an "address for service," being:
Note that "accessible address" is defined as an address in British Columbia accessible to the public during business hours, see Rule 1-1(1). RULE 6-1(2) In addition to an accessible address, additional addresses for service may include:
B. Selecting the Mode of Proceeding RULE 1-2(2) The new rules apply to "family law cases". Family law cases are cases which include claims:
The new rules do not define "marriage-like relationship." RULE 3-1(5), 21-3(1) Other claims, such as claims in tort, contract or negligence or brought under legislation other than the Divorce Act and the Family Relations Act, may be brought in a family law case as long as the other claims relates to relief property pled in the family law case. RULE 3-1(5), 21-3(2) Other parties may be joined as long as the claims against those parties relate to relief property pled in the family law case. RULE 22-1(8) Whenever practical, the same judge or master is to hear all applications and all judicial case conferences in and the trial of a family law case. 1. Notice of Family Claim RULE 1-1(1), 3-1(2) Most family law cases will be brought by filing a Notice of Family Claim. These are:
2. Petition RULE 3-1(2), (3) and (4) In certain relatively rare situations, where all that's needed is a single order, a family law case may be commenced by Petition. Petition proceedings involve claims for:
C. Commencing an Action RULE 4-1(1) A claimant commences a family law case by filing and personally serving a Notice of Family Claim in Form F3. RULE 2-2(1) Both claimant 1 and claimant 2 commence a joint family law case by filing a Notice of Joint Family Claim in Form F1. RULE 17-1(2) A petitioner commences a petition proceeding by filing and personally serving a Petition in Form F73, together with copies of all affidavits relied upon. RULE 4-1(2), 17-1(3) Personal service is required when commencing family law cases and petition proceedings. Note that where an amended pleading has been filed before the other party has replied to the original pleading, the amended pleading must be personally served on that party. See Rule 8-1(4). RULE 6-3(2), 6-3(4) Personal service is effected as personal service is effected under the current rules. Service on an individual is effective on the day of service where the document is served before 4:00pm on a day other than Saturday or a holiday; service will otherwise be effective on the next day that is not a Saturday or a holiday. Substitutional service is discussed in Rule 6-4. Service ex juris (outside British Columbia) is discussed in Rule 6-5; see also the provisions for jurisdictional disputes made in Rule 18-2. D. Replying to an Action RULE 18-2(1), 18-2(3) A respondent or petition respondent may apply to strike or stay all or part of an action after filing a Jurisdictional Response in Form F78. Note that applications to strike or stay must be brought within 30 days of filing the Jurisdictional Response. Until the application is heard, the respondent may apply for and enforce orders without attorning to the jurisdiction. RULE 4-3(1) A respondent replies to a Notice of Family Claim by filing and serving a Response to Family Claim in Form F4 within 30 days of service. Note that a respondent who fails to file a Response within the 30 day limit is not entitled to notice of any further step in the action, see Rule 4-3(2). RULE 4-4(1), 4-4(2) A respondent may bring a claim against a claimant by filing and serving a Counterclaim in Form F5 within 30 days of service. Note that the claims which may be brought by Counterclaim are those which would be properly pled as a family law case if the respondent had commenced the action, including other claims and claims brought against other parties. See Rules 4-4(1)(f) and 4-4(3). RULE 17-1(4), 17-1(5) A petition respondent replies to a Petition by filing and serving a Response to Petition in Form F74, together with copies of all affidavits relied upon:
RULE 6-2(1) Responses to Family Claims, Counterclaims and Responses to Petition are served by ordinary service. RULE 6-2(2) Ordinary service is effected by:
Note that "address for service" includes a postal address for service, a fax number for service and an email address for service, see Rule 6-1(2). RULE 6-2(3) Documents left at an address for service are served the day of service where the document is served before 4:00pm on a day other than Saturday or a holiday; service will otherwise be effective on the next day that is not a Saturday or a holiday. RULE 6-2(4) Documents mailed to a postal address for service are deemed served one week later. RULE 6-2(5) Documents faxed to a fax number for service are served when faxed where the document is less than 30 pages. Documents longer than 30 pages must be faxed between 5:00pm and 8:00am, or at such other time as may be agreed. RULE 6-2(6) Documents emailed to an email address for service are served the day they are emailed where the document is emailed before 4:00pm on a day other than Saturday or a holiday; service will otherwise be effective on the next day that is not a Saturday or a holiday. E. Replying to a Counterclaim RULE 18-2(1), 18-2(3) A claimant may apply to strike or stay all or part of a Counterclaim after filing a Jurisdictional Response in Form F78. Note that applications to strike or stay must be brought within 30 days of filing the Jurisdictional Response. RULE 4-4(5) A claimant replies to a Counterclaim by filing and delivering a Response to Counterclaim in Form F6 within 30 days of service of the Counterclaim. Note that a a claimant who fails to file a Response to Claim within the 30 day limit is not entitled to notice of any further step in the action. RULE 6-2(1) Responses to Counterclaim are served by ordinary service. F. Judicial Case Conferences RULE 7-1(2), 7-1(3) Notices of Application (formerly Notices of Motion) and supporting affidavits may not be served until a judicial case conference has been conducted, except where:
RULE 7-1(4), 7-1(5) A party may apply for exemption from this requirement by Requisition in Form F17 with a supporting letter if:
RULE 7-1(1) Additional JCCs may be held at any time. RULE 7-1(7), 7-1(8) JCCs are booked by filing a Notice of Judicial Case Conference in Form F19 and serving a copy on all parties at least 30 days before the JCC, along with the booking party's Financial Statement in Form F8. RULE 7-1(11) A party served with a Notice of Judicial Case conference must file and serve a Financial Statement in Form F8 at least 7 days before the JCC. RULE 7-1(12), 7-1(13) JCCs are conducted by a judge or a master and must be attended by the parties and their counsel, unless otherwise ordered. Note that the specific powers of the court at JCCs are enumerated in detail at Rule 7-1(15). RULE 7-1(17), 7-1(18) The judge or master presiding at a JCC may order that he or she be seized, or subsequently be relieved of seizement, of all further applications. Note that whenever practical, the same judge or master is to hear all judicial case conferences in an action. See Rule 22-1(8). G. Discontinuance and Withdrawal RULE 11-4(1), 11-4(2) A claimant may discontinue all or part of a family law case at any time before a Notice of Trial is filed by filing and serving a Notice of Discontinuance in Form F39; thereafter discontinuance requires consent or leave. RULE 11-4(1), 11-4(8) A petitioner may discontinue all or part of a petition proceeding by filing and serving a Notice of Discontinuance in Form F39. RULE 11-4(3), 11-4(6) A respondent may withdraw all or part of a Response to Family Claim at any time by filing and serving a Notice of Withdrawal in Form F40, and the claimant may proceed as if no Response to Family Claim had been filed. RULE 11-4(6), 11-4(8) A petitioner respondent may withdraw all or part of a Response to Petition at any time by filing and serving a Notice of Withdrawal in Form F40, and the petitioner may proceed as if no Response to Petition had been filed. Back to the top of this chapter. II. Timelines and Deadlines As with every cookbook, it's not enough to know the order in which the ingredients need to be added to make cake batter, you also have to know how long the cake needs to bake. Timelines like these are critical elements of the Rules of Court. Without timelines and deadlines, you wouldn't know how long you had to reply to a law suit, how long to wait before your application can be heard, or how much notice to give for your expert's report. The timelines set out in the Rules are necessary to keep everything on track — to make sure the cake eventually winds up getting baked — and they work to the benefit of both sides. Someone who gets served with a law suit needs to know how much time she has to find a lawyer and file a reply, and the person doing the serving needs to know how long to wait before she can move to the next step in the process. Likewise, the person doing the serving also needs to know that remedies are available if the other person doesn't reply in time, and the person getting served needs to know that that remedies are available if the other prerson proceeds too soon. Needless to say, the timelines and deadlines set out in the Rules of Court are very important and should be checked at every step of the litigation process. A. Calculation of Time RULE 21-2(1) Time periods of less than 7 days exclude holidays in counting the time period unless a specific rule says otherwise. ("Holiday" is defined in the Interpretation Act as including Sundays and the usual major holidays.) Time periods of 7 days or more count weekends and holidays. RULE 10-6(1) Time periods in chambers applications count only "business days," defined as days when the courthouse is open. Business days therefore excludes weekends and holidays. RULE 21-1(2), 21-2(2) The court may extend or shorten any period of time on application, and applications to extend a time period may be brought after the period has expired. B. Service Service comes in two flavours: "personal service," which is required to serve the documents which begin a court action, and "ordinary service," which is required to transmit day to day letters and less important legal documents once a court action has started. 1. Personal Service Personal service is required for the documents that begin a court action and the documents for applications to vary a final order. Personal service is to be effected as personal service is effected under the old rules, by personally handing the documents to the person to be served. 2. Ordinary Service RULE 6-2(3) Documents left at an address for service are served:
RULE 6-2(4) Documents mailed to a postal address for service are deemed served one week later. RULE 6-2(5) Documents faxed to a fax number for service are served when faxed. Note that documents longer than 30 pages can only be faxed between 5:00pm and 8:00am, unless otherwise agreed. RULE 6-2(6) Documents emailed to an email address for service are served:
RULE 6-2(7) Where a party has not provided an address for service, documents mailed to the party’s last known address are deemed served one week later. C. Commencing an Action RULE 4-2(1), 4-2(2) Notices of Family Claim expire in 12 months if not renewed; renewed Notices of Family Claim expire 12 months from the date of the renewal order. RULE 21-2(4) Where judgment has not been pronounced and no step has been taken in the action for one year, a party may not proceed with the action until 28 days after service of the party’s Notice of Intention to Proceed. RULE 17-1(2), 17-1(21) Petitions expire in 12 months if not renewed; renewed Petitions expire 12 months from the date of the renewal order. D. Replying to an Action RULE 18-2(5) Applications to strike, dismiss or stay all or part of a Notice of Family Claim or Petition must be brought within 30 days of filing a Jurisdictional Response. RULE 4-3(1) Responses to Family Claim must be filed and served within 30 days of service with a Notice of Family Claim. RULE 4-4(2) Counterclaims must be filed and served:
RULE 21-2(4) Where judgment has not been pronounced and no step has been taken in the action for one year, a party may not proceed with the action until 28 days after service of the party’s Notice of Intention to Proceed. RULE 17-1(4), 17-1(5) Responses to Petition must be served:
E. Replying to a Counterclaim RULE 18-2(5) Applications to strike, dismiss or stay all or part of a Counterclaim must be brought within 30 days of filing a Jurisdictional Response. RULE 4-4(5) Responses to Counterclaim must be filed and served within 30 days of service with a Counterclaim. F. Amending Pleadings RULE 8-1(1), 8-1(4) Pleadings may be amended once without leave before service of Notice of Trial and must served within 7 days of filing. After service of the Notice of Trial, pleadings may only be amended with leave or written consent. RULE 8-1(5) A reply to an amended pleading must be filed and served within 14 days of service of the amended pleading. G. Judicial Case Conferences RULE 7-1(8), 7-1(10) A party requesting a JCC must serve a Notice of the Judicial Case Conference and the party’s Financial Statement at least 30 days before the date set for the JCC; the original Financial Statement must be filed at least 7 days before the JCC. RULE 7-1(11) A party served with a Notice of Judicial Case Conference must file and serve a Financial Statement at least 7 days before the JCC. H. Financial Statements RULE 5-1(11) A party making a claim requiring a Financial Statement must file and serve Financial Statement within 30 days of service of the claim. RULE 5-1(11) A party responding to a claim requiring a Financial Statement must file and serve Financial Statement:
RULE 5-1(14) If particulars of a Financial Statement are not produced within 7 days of a demand for particulars, the court may order the production of particulars or a new Financial Statement. RULE 5-1(22), 5-1(24) Demands for documents relating to a party’s business interest must be complied with within 21 days of the demand; applications for exemption from a disclosure demand must be made within 21 days of service of the demand. RULE 5-1(15), 5-1(16) Where there is a material change in a party’s circumstances:
RULE 5-1(18) Where a party’s most recent Financial Statement will have been served more than 91 days before hearing or trial, the party must produce an updated Financial Statement 63 to 28 days before the trial or hearing. I. Interim Applications RULE 10-6(7) The applicant must serve filed copies of the Notice of Application and supporting materials at least 8 business days before the date of hearing. Note that for chambers applications which are summary trials, the Notice of Application must be served at least 12 business days before the date of hearing; for applications to change a final order, the Notice of Application must be served at least 21 business days before the date of hearing. See Rule 10-6(7). RULE 10-6(8) A person wishing to respond to an application must file an Application Response and supporting materials and serve those materials within 5 business days of service of the Notice of Application. Note that for chambers applications which are summary trials, the Application Response must be filed within 8 business days of service of the Notice of Application; for applications to change a final order, the Application Response must be served at least 14 business days before the date of hearing See Rule 10-6(8.1). RULE 10-6(12) An applicant wishing to respond to a response must file and serve any new affidavits by 4pm on the court day that is one full business day before the hearing. RULE 10-6(14) Where an application is opposed:
RULE 10-3(7) Applications adjourned generally may be set for hearing on 3 days notice. RULE 10-6(20) Where an applicant does not set an application for hearing within a reasonable time, an application respondent may apply for directions on 2 days notice. J. Discovery and Disclosure Once a law suit has started, each party is under an ongoing obligation to disclose documents and information. The documents that must be disclosed are documents relating to any aspect of the claims being advanced in the law suit, and whether the documents are relevant to your case or to the other party's case, they must be disclosed and kept up to date. Likewise, each party has the ongoing right to demand documents and information from the other side. This is generally what "discovery" means. This right even allows each side to force the other party to answer questions under oath, in writing through Interrogatories and Notices to Admit, or orally at Examinations for Discovery. 1. Lists of Documents RULE 9-1(1) A party serving a Notice of Family Claim must serve a List of Documents within 35 days of being served with a Response to Family Claim. In otherwords, a List of Documents only needs to be prepared where the family law case is defended. RULE 9-1(1) A party replying to a claim must serve a List of Documents within 35 days of serving his or her Response to Family Claim or Response to Counterclaim. RULE 9-1(6) If a List of Documents becomes inaccurate or incomplete, the party must promptly serve a Supplementary List of Documents. RULE 9-1(9), 9-1(10) Demands for Supplementary Lists of Documents or additional documents must be complied with or refused with an explanation within 35 days of receipt of the demand or the requesting party may apply for an order for compliance. 2. Examinations for Discovery RULE 9-2(12) Appointments to Examine for Discovery must be served, with the required witness fees, at least 7 days before the examination for discovery. 3. Pre-Trial Examinations and Depositions RULE 9-4(7), 9-7(13) Subpoenas for examination must be served at least 7 days before the date of the examination. 4. Interrogatories RULE 9-3(4) An affidavit in answer to interrogatories must be served within 21 days of service of Interrogatories. RULE 9-3(11) A party learning that his or her answer to interrogatories is inaccurate or incomplete must promptly serve a correcting affidavit. 5. Notices to Admit RULE 9-6(2) A party must serve a written response within 14 days of service of a Notice to Admit or the admission will be deemed. K. Expert Evidence RULE 13-1(2) A party wishing to cross-examine an expert must serve a Notice to Cross-Examine on the expert and parties at least 49 days before the trial date. RULE 13-4(6) A party applying for leave to introduce the evidence of an additional expert must serve the Notice of Application and supporting materials within 21 days of receipt of the joint expert’s report. RULE 13-6(3) Expert’s reports, except for the reports of experts appointed by the court, must served at least 84 days before the trial date. RULE 13-6(4) Rebuttal reports must be served at least 42 days before the trial date. RULE 13-6(8) A party serving the report of the party’s own expert must promptly provide information requested by the other party about the preparation of the report, and must make the expert’s file available to the other party at least 14 days before the trial date. RULE 13-6(10) A party objecting to the report of the other party’s expert must serve notice by the earlier of the date of the trial management conference or 21 days before the trial date. L. Discontinuance RULE 11-4(1) A claimant may discontinue all or part of an action at any time before a Notice of Trial is filed. M. Summary Trials Summary trials are heard in the same way as interim applications. All of the evidence is given by written evidence in the form of affidavits and Financial Statements. No witnesses give oral evidence and, most of the time, no witnesses are cross-examined. RULE 11-3(3) Where a trial date has also been scheduled, summary trials must be heard at least 43 days before the trial is to begin. RULE 10-6(7)(b), 11-3(8) The applicant must serve filed copies of the Notice of Application and supporting materials at least 12 business days before the date of hearing. RULE 10-6(8.1)(b) The application respondent must file and serve an Application Response and supporting materials within 8 business days of service of the Notice of Application. N. Trials If a law suit cannot be resolved by the parties out of court, or in court by a summary trial, it will have be resolved at a trial. Trials are the formal means by which claims are tested and conclusively determined. Trials differ from summary trials in that all of the evidence is given orally and is subject to cross-examination. Although trials take a lot longer to get through than summary trials, they are necessary whenever the credibility of a witness is at issue. 1. Pre-Trial Matters RULE 14-2(6) A party objecting to a trial date set out in a Notice of Trial must apply for an order rescheduling the trial within 21 days of service. RULE 14-3(1), 14-3(3) A trial management conference must be held at least 28 days from the trial date; Trial Briefs must be filed and served at least 7 days before the trial management conference. RULE 14-4(3) The party filing a Notice of Trial must file a Trial Record 28 to 14 days before the trial date. RULE 14-5(1), 14-5(2) Each party must file a Trial Certificate 28 to 14 days before the trial date. 2. Evidence at Trial RULE 14-7(8) A party may require the other party to bring a document or an object to the trial by serving a Notice to Produce at least 2 days before the trial date. RULE 14-7(10) No plan, photograph or object may be introduced at trial unless the other parties have been given the opportunity to inspect it at least 7 days before the trial date. RULE 14-7(21) A party wishing to call a person adverse in interest must serve the adverse party with a Notice of Intention to Call Adverse Party as Witness, with fees, at least 7 days before the attendance of the witness is required. RULE 14-7(60) A party wishing to introduce evidence by affidavit must serve the affidavit on all parties at least 28 days before applying for leave to introduce evidence by affidavit. O. Post-Judgment Matters Once a trial or an application has been heard and judgment rendered, either or both parties can decide to appeal the judgment if they genuinely believe that the judge or master made a mistake. Whether a judgment is appealed or not, a party may be entitled to his or her costs of prosecuting or defending the action, and the successful party will be entitled have the judgment enforced. 1. Appeals RULE 18-3(5) Applications for direction on the conduct of an appeal from a master, registrar or special referee must be brought at least 7 days after service of the Notice of Appeal. Note that appeals from final decisions of the Supreme Court are handled by the Court of Appeal and the timelines for these appeals are governed by the Court of Appeal Rules. RULE 18-3(8) A person opposing an appeal must file a Notice of Interest within 7 days of service of the Notice of Appeal. RULE 22-7(10) There must be at least 3 days between service of the Notice of Appeal of a master, registrar or special referee and the hearing date. 2. Enforcement RULE 15-4(18) Writs of Execution expire in 12 months if not renewed; renewed Writs of Execution expire 12 months from the date of the renewal order. RULE 15-6(3) A Subpoena to Debtor must be served at least 7 days before the date of the examination of the debtor. RULE 15-8(5) Certificates of Result of Sale of real property must be filed promptly after completion of the sale. 3. Costs RULE 16-1(20) Appointments for the assessment of costs must be served at least 5 days before the appointment date. RULE 16-1(26) Applications to review an assessment of costs must be made within 14 days of the assessment. RULE 16-1(23) Appointments for the assessment of sheriff’s fees must be served at least 5 days before the appointment date. RULE 16-1(26) Applications to review an assessment of costs must be made within 14 days of the assessment. Back to the top of this chapter. III. Chambers Proceedings Chambers is the name of court in which masters or judges hear applications. Applications can be made in chambers for temporary orders, called interim orders, or for final orders which conclusively resolve a law suit. In family law, people commonly ask for interim orders about things like child support, spousal support and parenting schedules, for orders restraining a party from dealing with assets or harassing someone else, or for temporary orders to deal with immediate issues like the timing of access over the holidays or a child's medical treatment. These applictions are called "interim applications" or "interlocutory applications." It is less common for people to apply for final orders in chambers in family law. This is because the evidence used to argue an application in chambers is affidavit evidence, not oral evidence, and isn't usually subject to cross-examination the way evidence is at trial. Without hearing oral evidence and the opportunity to see how witnesses react under cross-examination, the court is rarely able to assess the credibility of a witness and may not be able to make a final judgment as a result. However, where the issues are straightforward and don't require the court to assess someone's truthfulness, the court may be able to decide a case; this is relatively rare in family law matters, but it does happen. These applications are called "summary trials." This segment will cover:
See the chapter The Legal System > Interim Applications for a practical discussion of the process for interim applications and some suggested timelines which may help Rule 10-6 work a little better. A. General Provisions RULE 10-3(2) The court may proceed to hear a chambers proceeding if a party fails to attend, but it may require evidence of service of the application. Note that orders made in a party’s absence must not be reconsidered unless the court is satisfied that the party is not guilty of willful delay or default, see Rule 10-3(3). 10-6(1) Time is calculated in "business days," defined as days on which the court registries are open for business and therefore excluding Saturdays, Sundays and statutory holidays, and potentially days when the court registry is inadvertently closed, perhaps because of a labour dispute or an emergency. 1. Evidence at Application RULE 10-3(4) Evidence at chambers proceedings is to be given by affidavit, subject to the court’s discretion to order the examination or cross-examination of a deponent, direct an inquiry, assessment or accounting under Rule 18-1, or receive other forms of evidence. The rules about affidavits are set out in Rule 10-4. 2. Adjournments RULE 10-3(6) Applications set for hearing on a day the court does not sit are automatically adjourned without order to the next chambers day. RULE 10-3(10) A registrar may adjourn a chambers proceeding. RULE 10-3(7)(b) A party may set an chambers proceeding adjourned generally for hearing on 3 days notice. 3. Court's Power RULE 10-3(7) At the hearing of an chambers proceeding, the court may:
4. Short- or No-Notice Applications RULE 21-2(2) The court may shorten or extend any time period, including on an application brought after the expiry of the time period. RULE 10-3(8) At the hearing of without notice chambers proceeding, formerly called an ex parte application, if the court thinks notice should have been given it may:
Special instructions for without notice applications are set out at Rule 10-9(6) to (8). Special instructions for urgent applications are set out at Rule 10-9(1) to (5). 5. Applications in Actions Started by Notice of Family Claim RULE 1-1(1) The parties to an application in a matter brought by Notice of Family Claim are:
Whenever practical, the same judge or master is to hear all applications in a family law case. See Rule 22-1(8). RULE 10-2(1), 10-2(4) Applications are to be heard in the judicial district in which the family law case is being conducted unless the registrar grants leave to have the application heard elsewhere. RULE 10-2(2), 10-2(3) If there is more than one court in the judicial district the applicant may have the application heard at any of those courts, subject to the potential costs consequences if the application is heard at a court other than the court in which the family law case is being conducted. RULE 10-4(1) Affidavits used in family law cases must be filed. 6. Hearings in Petition Proceedings RULE 1-1(1) The parties to a petition proceeding are:
The process for Petitions is governed by Rule 17-1. Read this rule carefully. In petition proceedings, the claims made in the Petition are heard in chambers, in the manner of an interim application, and the order which results is a final order. B. Interim Applications Interim applications are applications for temporary orders brought after the filing of a Notice of Family Claim but before the resolution of the action at trial or by settlement. 1. Bringing an Application RULE 10-6(2) A party wishing to bring an application must file a Notice of Application in Form F31 and the original of every affidavit to be relied upon and not already filed. RULE 10-6(3) The Notice of Application must:
2. Serving an Application RULE 10-6(6) The applicant must serve filed copies of the Notice of Application and supporting materials on all parties and other persons affected by the relief sought by ordinary service. RULE 10-6(7)(a) Service must be accomplished at least 8 business days before the hearing date. 3. Responding to an Application RULE 10-6(8) A person wishing to respond to an application must file an Application Response in Form F32 and the original of every affidavit to be relied upon and not already filed. Note that an application respondent is defined as a person who has filed an Application Response. A person who does not file an Application Response is not entitled to notice of the hearing date, see Rule 10-6(1). RULE 10-6(9) The Application Response must:
RULE 10-6(8) The application respondent must serve two copies of the filed Application Response and supporting materials on the applicant, and serve one copy of these documents on all other parties. RULE 10-6(8.1)(a) Filing and service must occur within 5 business days of the date of service of the Notice of Application. 4. Responding to a Response RULE 10-6(12) An applicant wishing to respond to a response must file and serve the original of any new affidavits on all application respondents by 4pm on the business day that is one full business day the before the hearing date. 5. Setting a Hearing Date RULE 10-6(5) The hearing date for applications estimated to take more than 2 hours must be fixed by the registrar. RULE 10-6(4) The time of hearing must be set for 9:45am, subject to the direction of the court or registrar. RULE 10-6(14) Where an application is opposed:
RULE 10-6(16) Where a cross-application will be heard simultaneously, the parties are to prepare a joint Application Record. RULE 10-6(20) If the applicant does not set a hearing date within a reasonable time following the request of the application respondent, the application respondent may apply for directions by Requisition on Form F17 on 2 days notice to the applicant. C. Final Orders: Summary Trials Summary trials are heard in the same way as interim applications. All of the evidence is given by written evidence in the form of affidavits and Financial Statements. No witnesses give oral evidence and, most of the time, no witnesses are cross-examined. 1. Bringing an Application RULE 11-3(2) A party may apply for judgment on all or some issues where:
RULE 10-6(2), 11-3(5), 11-3(8), 11-3(9) A party wishing to bring an application must file and serve:
Where evidence from examinations for discovery, answers to interrogatories or admissions will be relied upon, the applicant must serve notice at least 12 business days before the hearing date. See Rules 10-6(8)(c)(iii) and 11-3(10). RULE 10-6(3) The Notice of Application must:
2. Serving an Application RULE 10-6(6) The applicant must serve filed copies of the Notice of Application and supporting materials on all parties and other persons affected by the relief sought by ordinary service. RULE 10-6(7)(b) Service must be accomplished at least 12 business days before the hearing date. 3. Responding to an Application RULE 10-6(8), 11-3(5) A person wishing to respond to an application must, within 8 business days of service of the Notice of Application, file:
Note that an application respondent is defined as a person who has filed an Application Response. A person who does not file an Application Response is not entitled to notice of the hearing date. See Rule 10-6(1). RULE 10-6(9) The Application Response must:
RULE 10-6(8), (8.1)(b) The application respondent must serve two filed copies of the Application Response and supporting materials on the applicant and one filed copy on all other parties within 8 business days of service of the Notice of Application. 4. Responding to a Response RULE 10-6(12) An applicant wishing to respond to a response must file and serve the original of any new affidavits on all application respondents by 4pm on the business day that is one full business day before the hearing date. 5. Before the Hearing of an Application RULE 11-3(11) On or prior to the hearing date, the court may, on application:
Note that applications for preliminary relief may be heard by a judge or master. Unless otherwise ordered, a judge hearing such an application is not seized of the summary trial. See Rules 11-3(13) and 11-3(14). 6. Setting a Hearing Date RULE 11-3(3) Summary trial applications must be heard at least 42 days before the trial date. RULE 10-6(5) The hearing date for applications estimated to take more than 2 hours must be fixed by the registrar. RULE 10-6(4) The time of hearing must be set for 9:45am, subject to the direction of the court or registrar. RULE 10-6(14) Where an application is opposed:
RULE 10-6(16) Where an application and cross-application will be heard together, the parties are to prepare a joint Application Record. RULE 10-6(20) If the applicant does not set a hearing date within a reasonable time following the request of the application respondent, the application respondent may apply for directions by Requisition on Form F17 on 2 days notice to the applicant. 7. At the Hearing RULE 11-3(15) At the hearing, the court may:
RULE 11-3(17) Where the court cannot grant judgment, the court may:
RULE 11-3(16) Where the court refuses to grant judgment, the applicant may not make a further application for summary judgment without leave. D. Final Orders: Petition Proceedings Petition proceedings are shortened actions where the relief sought is limited in scope and doesn't require the full process available for actions brought by Notice of Family Claim. Petition proceedings are best reserved for simple cases where the whole thing can be dealt with in a single hearing, and it won't be necessary to go through the whole process of discovery and production. In general, petition proceedings are best suited for things like adoptions and applications to register foreign orders about children. A Petition is really a glorified Notice of Application. The person replying to a Petition must file a Response to Petition within a certain amount of time, following which the petitioner is entitled to set the Petition for hearing in chambers. The result of the hearing is a final order. 1. Commencing a Petition Proceeding RULE 17-1(2) A petitioner commences a petition proceeding by filing and serving a Petition in Form F73, together with copies of all affidavits relied upon. RULE 17-1(19) A Petition may be amended once before service of the Notice of Hearing and otherwise with consent or leave. RULE 17-1(20) Petitions expire in 12 months if not renewed; renewed Petitions expire 12 months from the date of the renewal order. 2. Serving a Petition RULE 17-1(3) Personal service is required when commencing petition proceedings. RULE 6-3(2), 6-3(4) Personal service on an individual is effective on the day of service where the document is served before 4:00pm on a day other than Saturday or a holiday; service will otherwise be effective on the next day that is not a Saturday or a holiday. Note that substitutional service is discussed in Rule 6-4 and service ex juris (outside British Columbia) is discussed in Rule 6-5; see also the provisions for jurisdictional disputes set out in Rule 18-2. 3. Responding to a Petition RULE 17-1(4), 17-1(5) A petition respondent defends a petition proceeding by filing and serving a Response to Petition in Form F74, together with copies of all affidavits relied upon:
Note that a petition respondent is defined as a person who has filed a Response to Petition. A person who does not file a Response to Petition is not entitled to notice of the hearing date. See Rule 17-1(4). RULE 17-1(5) The Response to Petition must:
RULE 17-1(19) A Response to Petition may be amended once before service of the Notice of Hearing and otherwise with consent or leave. 4. Responding to a Response RULE 17-1(6) A petitioner wishing to respond to a response must file and serve the original of any new affidavits on all petition respondents at least 7 days before the hearing date. 5. Setting a Hearing Date RULE 17-1(8) A petitioner may set an petition proceeding for hearing:
RULE 17-1(10) The hearing date for petition proceedings estimated to take more than 2 hours must be fixed by the registrar. RULE 17-1(9) The time of hearing must be set for 9:45am, subject to the direction of the court or registrar. RULE 17-1(11) Where a petition proceeding is opposed:
RULE 17-1(13) Where a petition respondent intends an application to be heard at the same time, the parties are to prepare a Joint Petition Record. RULE 17-1(17) If the petitioner does not set a hearing date within a reasonable time following the request of a petition respondent, the petition respondent may apply for directions by Requisition on Form F17 on 2 days notice to the petitioner. E. Varying a Final Order The final kind of chambers proceeding is applications to change a final order. In normal civil litigation, people don't get to go around changing final orders. In family law, however, final orders about parenting arrangements, child support and spousal support can be changed where there has been a significant and unexpected change in circumstances since the final order was made. Applications to change final orders are brought by Notice of Application in more or less the same manner as interim applications. The result of the hearing of an application to change a final order is another final order. 1. Bringing an Application RULE 10-6(2) A party wishing to bring an application must file a Notice of Application in Form F31 and the original of every affidavit to be relied upon and not already filed. RULE 10-6(3) The Notice of Application must:
2. Serving an Application RULE 10-6(6) The applicant must serve filed copies of the Notice of Application and supporting materials on all parties and other persons affected by the relief sought. RULE 10-6(7)(c) Service is by personal service and must be accomplished at least 21 business days before the hearing date. 3. Responding to an Application RULE 10-6(8), (8.1)(c) A person wishing to respond to an application must file an Application Response in Form F32 and the original of every affidavit to be relied upon and not already filed within 14 business days of service of the Notice of Application. Note that an application respondent is defined as a person who has filed an Application Response. A person who does not file an Application Response is not entitled to notice of the hearing date. See Rule 10-6(1). RULE 10-6(9) The Application Response must:
RULE 10-6(8.1)(c) The application respondent must serve two filed copies of the Application Response and supporting materials on the applicant and one filed copy on all other parties within 14 business days of service of the Notice of Application. 4. Responding to a Response RULE 10-6(12) An applicant wishing to respond to a response must file and serve the original of any new affidavits on all application respondents by 4pm on the business day that is one full business day before the hearing date. 5. Setting a Hearing Date RULE 10-6(5) The hearing date for applications estimated to take more than 2 hours must be fixed by the registrar. RULE 10-6(4) The time of hearing must be set for 9:45am, subject to the direction of the court or registrar. RULE 10-6(14) Where an application is opposed:
RULE 10-6(16) Where a cross-application will be heard simultaneously, the parties are to prepare a joint Application Record. RULE 10-6(20) If the applicant does not set a hearing date within a reasonable time following the request of the application respondent, the application respondent may apply for directions by Requisition on Form F17 on 2 days notice to the applicant. Back to the top of this chapter. IV. Resources The text of the Supreme Court Family Rules is available on the website of the Queen's Printer, including the new forms prescribed by the new rules and consolidating the changes made by the Order in Council of 5 May 2010. The Practice Directions released on 29 June 2010 are available directly from the the Supreme Court. Bookmark these links! The Attorney General's office has published some helpful online resources about the new rules and forms. A page introducing the rules offers links to the rules, the forms and a schedule of the new court fees. The new forms have been made available in an active PDF format that allows users to fill the forms out online for printing; people with service agrements with Court Services Online may efile these forms. I am making my papers on the new rules available for download in PDF format. Click the links below to download these papers to your computer. Note that papers dated prior to May will not reflect the amendments made by the 5 May 2010 Order in Council; papers dated prior to August will not reflect the amendments made by the 29 July 2010 Order in Council. Index and Concordance: Rules Commonly Referenced Commencing Proceedings: Process and Procedure Commencing Proceedings: Disclosure and Discovery Chambers Proceedings: Process and Procedure Desk Orders: Process and Procedure Timelines, Deadlines and Limitation Periods Feel free to use these papers as you see fit, but if you distribute these papers please make sure that me and my website are identified as their source. Back to the top of this chapter. Site Navigation Go on to The Legal System. Secton Menu
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